Citation Nr: A25035457 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 230617-355904 DATE: April 17, 2025 ORDER Entitlement to an increased rating more than 70 percent for generalized anxiety disorder, adjustment disorder with anxiety and depressed mood, and somatic symptom disorder is denied. FINDING OF FACT For the appellate period, the Veteran's psychological symptoms more nearly approximated the 70 percent rating criteria. CONCLUSION OF LAW The criteria for an increased rating more than 70 percent for generalized anxiety disorder, adjustment disorder with anxiety and depressed mood, and somatic symptom disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.125, 4.130, Diagnostic Code (DC) 9400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Air Force from December 2006 to August 2016. The rating decision on appeal was issued in April 2023 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the June 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the April 2023 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Increased Ratings Disability ratings are based on average impairment in earning capacity resulting from a particular disability and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two ratings apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. An exception to this rule occurs when the rating criteria are successive. In such a case, all the requirements of the lower levels must be met before a higher level is awarded, so 38 C.F.R. §§ 4.7 and 4.21 do not apply. Johnson v. Wilkie, 30 Vet. App. 245 (2018). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. With a claim for an increased initial rating, separate staged ratings may be assigned based on facts found. Fenderson v. West, 12 Vet. App. 119 (1999). In a claim for increase in a previously established rating, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence contains factual findings that demonstrate distinct time periods when the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, staged ratings are to be considered. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in approximate balance, with the veteran prevailing in either event, or whether the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran's statements describing symptoms and condition are competent evidence to the extent that one can describe one's own experiences. However, these statements must be viewed in conjunction with the medical evidence and the pertinent rating criteria. Lay evidence is not competent evidence concerning complex medical questions requiring specialized training or expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court.). Entitlement to an increased rating more than 70 percent for generalized anxiety disorder, adjustment disorder with anxiety and depressed mood, and somatic symptom disorder The Veteran contends that his generalized anxiety disorder, adjustment disorder with anxiety and depressed mood, and somatic symptom disorder (hereinafter "psychological disability") is more severe than currently rated. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the veteran's capacity for adjustment during periods of remission. See 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation on the basis of social impairment. See 38 C.F.R. § 4.126(b). The Board has reviewed all the evidence of record. Although the Board has an obligation to provide adequate reasons and bases supporting its decisions, there is no requirement that the Board discuss every piece of evidence in the record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to each claim. The Veteran's psychological disability is rated under DC 9400 as 30 percent disabling from August 7, 2017, and 70 percent disabling from December 30, 2021. See January 2025 Codesheet. The evidence during the period on appeal includes VA treatment records and a VA examination. In June 2022, the Veteran reported that his depression had recently worsened. See 2022 VA Treatment Records. He reported having lost his employment and being unable to find a new job. He reported being more depressed and irritable, with intermittent passive suicidal ideation with no plan or intent. He reported not sleeping more than a few hours per night. Id. In October 2022, the Veteran reported problems with focus and concentration, depression, and recurrence of trauma in different ways. Id. The physician noted that the impact of the Veteran's PTSD and depression was more moderate to severe, as he was very stressed, irritable, and depressed, with passive intermittent suicidal ideation at times. This affected his ability to hold jobs, as well as social functioning, due to isolation and irritability. The physician opined that the Veteran's functioning was impacted by his psychological disability, causing at least moderate disability with regard to holding jobs and social functioning. The Veteran denied suicidal or homicidal ideation, psychotic symptoms or hallucinations, or manic symptoms. Id. In February 2023, the Veteran followed up with his provider, reporting that he was still dealing with anxiety and depression. See 2023 VA Treatment Records. He reported that his depression was about the same, however, his anxiety had worsened, presenting with increased agitation. The Veteran had a positive screen for depression. In a February 2023 VA examination, the Veteran's diagnoses were noted as generalized anxiety disorder, adjustment disorder with mixed anxiety and depressed mood, and somatic symptom disorder with predominant pain. See February 2023 VA Examination. The Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. He reported being currently single after a recent breakup, during which his partner told him he is difficult to manage. The Veteran reported being emotionally detached and having decreased libido. He lived by himself. He had three minor children, with whom he spoke routinely and had stable relationships. He denied any significant friendships and preferred to stay at home. He reported experiencing difficulties at work in the sense of feeling disrespected and becoming reactive. The Veteran's symptoms included depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or work like setting. Additional symptoms attributable to his psychological disability included decreased libido. Based on the evidence of record, the Board finds that the Veteran's current 70 percent rating under DC 9400 is appropriate for the entire period on appeal. The Veteran's psychological disability presented with symptoms such as suicidal ideation; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships which causes occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. To warrant a higher, 100 percent rating, the Veteran's disability would have to present with total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. (Continued on next page.) ? The Board observes increased ratings claims include a one-year look back period; however, the record does not show worsening of the Veteran's psychological disability in the year preceding his current claim application. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (holding that the effective date for an increased rating depends on when the increase in the disability can be ascertained). Since the Veteran's psychological disability did not worsen within the one year preceding his application for an increased rating, the Veteran's rating and effective date remain unchanged. Paulette Vance Burton Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Popa The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.